AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 140

Unopposed MOTION for Leave to File Amici Curiae Brief by Law Scholars (Attachments: # 1 Amici Curiae Brief, # 2 Proposed Order)(Hofmann, Marcia) Modified on 11/22/2019 (ztd). Modified on 11/26/2019 (ztd).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,
Plaintiff-Counterdefendants,

Case No: 1:14-cv-00857-TSC

v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.

UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF
OF LAW SCHOLARS IN SUPPORT OF DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S SECOND MOTION FOR SUMMARY JUDGMENT AND
IN OPPOSITION TO PLAINTIFF-COUNTERDEFENDANTS’ SECOND MOTION FOR
SUMMARY JUDGMENT AND PERMANENT INJUNCTION
On behalf of the amici identified in the accompanying appendix, herein referred to as
“Amici,” the undersigned counsel respectfully moves for leave to file an amicus curiae brief in
support of Defendant-Counterclaimant Public.Resource.Org’s Second Motion for Summary
Judgment and in opposition to Plaintiff-Counterdefendants’ Second Motion for Summary
Judgment and Permanent Injunction filed in the above referenced matter. A copy of the proposed
brief accompanies this motion.
1. Amici are professors at major U.S. law schools, who teach and write about copyright,
information law, intellectual property, the Internet, and related issues. Amici file solely as
individuals and not on behalf of any institutions with which they are affiliated.

2. Amici do not have a financial interest in the outcome of the present litigation. Amici—
as scholars and experts with knowledge and experience concerning copyright, information law,
intellectual property, the Internet, and related issues—have an interest in ensuring the proper
functioning and coherent development of the copyright system.
3. Further, as law professors, Amici are committed to ensuring robust and unfettered
access by citizens to the laws with which they are required to comply.
4. This Court has permitted amicus briefs when “the amicus has unique information or
perspective that can help the court beyond the help that the lawyers for the parties are able to
provide.” Jin v. Ministry of State Security, 557 F. Supp. 2d 131, 137 (D.D.C. 2008) (quoting
Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997)). As experts
in the field, Amici offer the viewpoint of unbiased observers, a perspective that the Court could
not otherwise get from the parties to this case.
5. Amici write to bring to the Court’s attention legal analysis relevant to the question of
fair use of works authored by standards developing organizations and incorporated into operative
law.
6. In particular, the proposed amicus brief provides context regarding fair use’s role in
furthering the purposes of copyright law, and assesses the applicability of fair use to model codes
that have been adopted in to law (like those in the present case).
7. Amici’s extensive knowledge of copyright law and related intellectual property issues,
developed through academic research and/or real world legal practice, combined with their
understanding of the purposes of copyright and fair use, gives Amici valuable insight into the
question at issue.

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8. The parties have agreed that they will not oppose any amicus filing in support of either
side.
DATED: November 22, 2019

Respectfully Submitted,

/s/ Marcia Hofmann
Marcia Hofmann
Zeitgeist Law PC
DC Bar ID # 484136
25 Taylor Street
San Francisco, CA 94102
[phone]
[e-mail]

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APPENDIX
Ann Bartow
Professor of Law, University of New Hampshire Franklin Pierce School of Law
Director, Franklin Pierce Center for Intellectual Property
Ann Bartow is the Director of the Franklin Pierce Center for Intellectual Property and a
Professor of Law at the University of New Hampshire Franklin Pierce School of Law. Prior to
joining the University of New Hampshire in 2015, Professor Bartow was taught at the Pace Law
School and the University of South Carolina School of Law. Professor Bartow was a Fulbright
Scholar at Tongji University in Shanghai, China during the 2011-2012 academic year. Bartow is
the current chair of the American Association of Law Schools Intellectual Property Section and a
current member of the Advisory Board of the Electronic Privacy Information Center (EPIC)..
Bartow is also a member of the American Law Institute.
Her scholarship focuses on the intersection between intellectual property laws and public
policy concerns, privacy and technology law, and feminist legal theory. At the University of
New Hampshire, Professor Bartow teaches courses about copyright law and intellectual
property.

Elizabeth Townsend Gard
Professor of Law, Tulane University Law School
Director, Tulane Center for IP Law and Culture
Elizabeth Townsend Gard is a professor of law at Tulane University Law School and is
the founder and co-director of the Tulane Center for IP Law and Culture. She also founded and
co-directs the Law/Culture/Innovation Initiative in the Social Innovation Social Entrepreneurship
Program at Tulane. Professor Townsend Gard has served as a non-resident fellow at the Center
for Internet and Society at Stanford Law School since 2004. She previously taught at Seattle

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University School of Law. She is also a co-inventor of the Durationer® Copyright Experiment, a
software system that collects information about the copyright status of a work around the globe.
Professor Townsend Gard’s research focuses on copyright law, international copyright
issues, and copyright duration, among other subjects. Her writings have appeared in Vanderbilt
Law Review, DePaul Law Review, Cardozo Arts & Entertainment Law Journal, the Journal of
the Copyright Society of the U.S.A., Journal of Internet Law, Columbia Journal of Law & the
Arts and Santa Clara Computer & High Technology Law Journal.

James Gibson
Sesquicentennial Professor of Law, University of Richmond School of Law
James Gibson is the Sesquicentennial Professor of Law at Richmond School of Law.
Professor Gibson teaches and writes on copyright law, the fair use doctrine, law and technology,
and other subjects. He has published scholarship in the Yale Law Journal, Virginia Law
Review, Georgetown Law Journal, Texas Law Review, and UCLA Law Review.

Brian L. Frye
Spears-Gilbert Associate Professor of Law, University of Kentucky College of Law

Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of
Kentucky College of Law. Prior to joining the University of Kentucky faculty in 2012, he was a
Visiting Assistant Professor of Law at Hofstra University School of Law and a litigation
associate at Sullivan & Cromwell LLP. He also clerked for Judge Andrew J. Kleinfeld of the
United States Court of Appeals for the Ninth Circuit and Justice Richard B. Sanders of the
Washington Supreme Court.

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Professor Frye's research focuses on intellectual property and charity law, especially in
relation to artists and art organizations. At the University of Kentucky, he teaches courses in
intellectual property, copyright law, and trademark law, among others.

Stacey M. Lantagne
Associate Professor of Law, The University of Mississippi School of Law
Stacey M. Lantagne is the Associate Dean for Faculty Development and an Associate
Professor of Law at the University of Mississippi School of Law. Professor Lantagne graduated
from Boston College summa cum laude with a B.A. in English and a computer science minor and
received her J.D. cum laude from Harvard Law School, where she was the co-executive editor of
the Harvard Journal of Law & Technology. After law school, she clerked for a year for Judge
Martin L.C. Feldman in the Eastern District of Louisiana. Upon completion of her clerkship,
Professor Lantagne practiced law first at Drinker Biddle & Reath in Washington, D.C., and then
at Goodwin Procter in Boston, where she practiced intellectual property litigation with a focus on
copyright and trademark matters, including a number of trade secret and deceptive advertising
cases. Prior to joining the University of Mississippi School of Law faculty, Professor Lantagne
was a Westerfield Fellow at Loyola New Orleans College of Law. Professor Lantagne is
admitted to practice in Massachusetts and the District of Columbia.

Jessica Silbey
Professor of Law, Northeastern University School of Law
Director of the Center for Law, Innovation, and Creativity, Northeastern University School of
Law
Jessica Silbey is a Professor of Law and the Faculty Director for the Center for Law,
Innovation, and Creativity at the Northeastern University School of Law. She was a 2018
Guggenheim Fellow in Law. Professor Silbey clerked for Judge Robert E. Keeton of the U.S.

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District Court for the District of Massachusetts and Judge Levin H. Campbell of the U.S. Court
of Appeals for the First Circuit.
Professor Silbey’s work focuses on intellectual property, copyright law, trademark law,
constitutional law, and cultural analysis of law. She is the author of The Eureka Myth: Creators,
Innovators and Everyday Intellectual Property (Stanford University Press, 2015), and the coeditor of two books about depictions of law in media and popular culture. She has been
published in the Boston University Law Review, the Notre Dame Law Review, the Maryland Law
Review, and the Columbia Journal of Law & the Arts, among others.

Rebecca Tushnet
Frank Stanton Professor of the First Amendment, Harvard Law School
Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law
School. Professor Tushnet specializes in copyright, trademark, and false advertising law. Her
publications include a casebook, The Law of Advertising and Marketing (2d ed., 2014), and a
chapter on transformative purpose in The Routledge Companion to Media Education, Copyright,
and Fair Use (Renee Hobbs ed., 2018). Her research has been published in the Harvard Law
Review, the Yale Law Journal, and the Texas Law Review, among other publications.

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